RSS Feed LinkedIn Instagram Twitter Facebook
FMG Law Blog Line

Posts Tagged ‘Seventh Circuit’

9th Circuit Holds Inadmissible Evidence May Support Class Cert

Posted on: May 17th, 2018

By: Ted Peters

Courts around the country are split over whether admissible evidence is needed to support a class certification.  The Fifth Circuit requires it, and the Seventh and Third Circuits appear to be of the same opinion.  In contrast, the Eighth Circuit has indicated that inadmissible evidence can be considered.  On May 3, 2018, the Ninth Circuit join ranks with the Eighth Circuit when it issued an opinion indicating that certification of a class action can be supported by inadmissible evidence.

The case arises out of the district court’s decision to deny class certification to a group of nurses based, in part, on the finding that two of the named plaintiffs had not offered evidence that they were underpaid.  Their only evidence consisted of a paralegal’s analysis of time cards reflecting that hours were not properly calculated.  While perhaps not sufficiently trustworthy to be admitted at trial, the Ninth Circuit concluded that the district court prematurely rejected such evidence when ruling on whether the class could be certified.  The Court stated: “Notably, the evidence needed to prove a class’s case often lies in a defendant’s possession and may be obtained only through discovery.  Limiting class-certification-state proof to admissible evidence risks terminating actions before a putative class may gather crucial admissible evidence.”

The Court also concluded that, because there was no consideration as to whether the employer controlled the nurses after they clocked in, the district court misapplied the definition of “work” under California jurisprudence.  Lastly, the Court was critical of the finding that the law firm representing the putative class action was incapable of properly representing the class, focusing on “apparent errors by counsel with no mention of the evidence in the record demonstrating class counsel’s substantial and competent work on [the] case.”

If you have questions or would like more information, please contact Ted Peters at [email protected].

Second Circuit Joins Seventh Circuit In Holding That Title VII Prohibits Discrimination On Basis Of Sexual Orientation

Posted on: March 1st, 2018

By: Bill Buechner

The Second Circuit which covers New York, Connecticut and Vermont, has issued an en banc decision holding that Title VII prohibits discrimination on the basis of sexual orientation. Zarda v. Altitude Express, 2018 U.S. U.S. App. LEXIS 4608 (2d Cir. Feb. 26, 2018). The Seventh Circuit issued an en banc decision almost a year ago reaching the same conclusion.

The 10-3 decision is very lengthy and includes various concurring and dissenting opinions. The Second Circuit cited four primary grounds for its holding. First, the Court concluded that sexual orientation discrimination is merely a subset of sex discrimination, and that an employer cannot discriminate against an employee based on sexual orientation without reference to the employee’s sex. Second, the Court concluded that “but for” the employee’s sex, the employee would not have been terminated. In other words, the male employee was terminated because he is attracted to men, whereas a female employee who is attracted to men would not have been terminated. Third, the Court concluded that sexual orientation discrimination constitutes gender stereotyping that is unlawful under Price Waterhouse.  Finally, the Court concluded that sexual orientation discrimination constitutes association discrimination that is already prohibited by Title VII.

As previously discussed here, in Evans v. Georgia Regional Hospital, 850. F3d 1248 (11th Cir. 2017), the Eleventh Circuit re-affirmed prior circuit precedent and held that Title VII does not prohibit discrimination on the basis of sexual orientation.  The Eleventh Circuit subsequently declined to hear the case en banc, and the Supreme Court denied the plaintiff’s petition for certiorari in that case.

The Zarda decision increases the likelihood that other circuits (perhaps including the Eleventh Circuit) will revisit whether Title VII prohibits sexual orientation discrimination, and also increases the possibility that the Supreme Court may eventually decide to resolve this issue.  In the meantime, employers should monitor federal case law developments in their jurisdiction and keep in mind that the EEOC has taken the position that Title VII prohibits discrimination on the basis of sexual orientation.

If you have any questions or would like additional information, you may contact Bill Buechner at [email protected].

Federal Circuit Scorecard – Title VII & Sexual Orientation Discrimination

Posted on: October 13th, 2017

By: Michael M. Hill

A Georgia case is in the running to be the one the Supreme Court uses to resolve the question of whether Title VII of the Civil Rights Act of 1964 (which prohibits employment discrimination on the basis of sex and certain other characteristics) also includes discrimination on the basis of sexual orientation. The Supreme Court is widely expected to take on this issue at some point, but no one knows exactly when or which case it will be.

In Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), a former hospital security guard alleged she was harassed and otherwise discriminated against at work because of her homosexual orientation and gender non-conformity.  While the trial court dismissed her case, the Eleventh Circuit Court of Appeals partially reversed.  The Eleventh Circuit held that Evans should be given a chance to amend her gender non-conformity claim, but it affirmed dismissal of her sexual orientation claim.

The issue, in most federal circuits, is a distinction between (1) claims of discrimination on the basis of gender stereotypes (e.g., for a woman being insufficiently feminine), which the Supreme Court has held is discrimination based on sex, and (2) claims of discrimination based on sexual orientation, which all but one federal circuit has held is not discrimination based on sex.

At present, this is how things stand now:

  • In the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin), sexual orientation discrimination does violate Title VII.
  • In every other federal circuit, sexual orientation discrimination does not violate Title VII.
  • But no matter where you are, the U.S. Equal Employment Opportunity Commission (EEOC) takes the position that sexual orientation discrimination does violate Title VII.

To make matters more confusing, the full court of the Second Circuit (which covers New York, Connecticut, and Vermont) is considering whether to affirm its past position that sexual orientation is not protected by Title VII or to join the Seventh Circuit. In that case, the EEOC of course is arguing that sexual orientation is a protected category, but the U.S. Department of Justice has filed an amicus brief to argue that sexual orientation is not protected.  In the words of the Department of Justice, “the EEOC is not speaking for the United States.”

The long and short of it is that, until the Supreme Court weighs in, employers need to be mindful of the federal law as interpreted in their circuit, while also understanding that the EEOC enforces its position nationwide whether or not the local federal circuit agrees with it.

If you have any questions or would like more information, please contact Michael M. Hill at [email protected].